Overview

The U.S. Antitrust Division has made criminal enforcement of the antitrust laws a top priority over the last two decades. Their leniency policy has uncovered a diverse range of international and domestic conspiracies—both large and small—and resulted in numerous pleas, massive fines, jail time for top executives and a plethora of follow-on private litigation. During just the last ten years, average yearly criminal fines imposed by the Antitrust Division on price fixers have increased from approximately $100 million a year to well over $1 billion annually. The number of executives jailed also has increased dramatically—including many foreign nationals—and average jail terms now exceed two years. The Division also has made it a point to attempt to extradite non-American executives residing abroad for prosecution in the United States. Whatever political winds may blow in Washington, criminal antitrust enforcement has broad, bi-partisan support. Moreover, companies facing international cartel investigations must anticipate enforcement actions not only by the Antitrust Division and the European Commission, but also by other antitrust authorities around the world. Jurisdictions such as Canada, Australia, Brazil, Japan, Ireland, Israel and the UK can and will pursue criminal antitrust charges.

The Antitrust Division, the FTC, and state attorneys general also are active in civil investigations and enforcement. Each federal agency (often in conjunction with state enforcers) over the last decade has targeted civil collusion matters and unilateral conduct with particular focus on certain industries or business practices, such as the FTC’s now over one-decade long emphasis on so-called “reverse payments” in the pharmaceutical industry. The Antitrust Division has proven especially keen in the last few years to try cases and seek extraordinary relief, such as compliance monitors.

In addition to direct harm, the collateral damage from a government investigation or prosecution is often great. Companies must deal with reputational harm, an erosion of shareholder value and the practical costs of ongoing distraction or loss of senior executives. For criminal cases—and increasingly also for government-directed civil matters—there is an inevitable wave of follow-on litigation. Collateral costs of a felony indictment can range from financing effects to preclusion from government bidding to shareholder derivative suits.

We understand the stages and complexity of government investigations and are apt at managing them for our clients. Lawyers in Thompson Hine’s Antitrust, Competition & Trade Regulation practice regularly represent individuals and firms under investigation for, or charged with, civil or criminal violations of the antitrust laws. We understand the antitrust agencies and the written and unwritten aspects of their leniency and enforcements policies. We know and are known by the agencies’ management. From grand jury investigations to amnesty applications, extradition proceedings and litigating against the government, our team has the experience to navigate clients through all phases of criminal antitrust proceedings. We have defended companies and their employees against government allegations of price fixing, bid rigging, market allocation, customer allocation and related issues of fraud and corruption. Because U.S. criminal proceedings often involve global cartels, our representations extend to dealing with competition authorities including those in Canada, as well as in Europe and Asia.

In assessing and managing government investigations, we are always prepared to work with government authorities (or with claimants). Not every grand jury investigation or preliminary investigation leads to government action, and the most successful matters are those in which we convince the government prosecutors to take no action. When circumstances call for a stronger approach, however, we are ready to push back hard to ensure our clients’ best interests are served.

Coordination is also key to handling these matters. We work collaboratively with co-counsel, joint defenses groups, enforcers and private litigants. Minimizing the complexity of these cases, especially those that cover multiple fora, is essential. When a client’s interests are best served by a negotiated resolution, we formulate and implement strategies that factor in all aspects of exposure, whether as a direct result of the government plea or decree, appurtenant class actions or other collateral effects.

Experience

Listed below are representative antitrust matters in which our partners have participated.

  • Representing a global electronics manufacturer in the DRAM grand jury investigation and ultimate plea and related MDL civil litigation. Coordinated with EU and Canadian counsel in parallel investigations.
  • Obtained and acquittal following trial of criminal antitrust charges against an executive in the commercial explosives market in the only case that went to trial in an industry-wide investigation.
  • Representing multiple foreign executives in DoJ’s sweeping investigation of criminal price-fixing activity in the auto-parts investigations. Matters resolved without prosecution.
  • Defending a privately held manufacturing company in a DOJ criminal antitrust cartel investigation focused on chemical-industry related domestic commerce.
  • Representing a foreign national executive in a DOJ criminal price-fixing investigation in a maritime trade.
  • Representing a transportation company CEO in a cartel investigation and securing successful termination of the grand jury investigation with no action.
  • Successfully represented an executive in the cement pipe industry against price-fixing charges, achieving an acquittal following trial.
  • Represented a company and a key executive in connection with an investigation into and trial of market allocation allegations in the motion picture distribution market.
  • Successfully represented a manufacturer of industrial packaging products in a grand jury investigation and civil litigation arising from charges of price fixing and customer allocation.
  • Represented a grocery store chain in the federal criminal investigation, federal and private civil litigation, and class-action litigation all resulting from an investigation into allegations of price fixing in the retail grocery market.
  • Successfully represented a subject of a grand jury investigation into allegations of price fixing and bid rigging in the used machinery auction market.
  • Successfully represented a seller of packaged chlorine in connection with a state attorney general’s antitrust investigation into price fixing and bid rigging charges.
  • Representing real estate developers in a DoJ criminal foreclosure auction bid-rigging investigation.
  • Representing pharmaceutical executives in a DOJ criminal antitrust price-fixing investigation.
  • Representing an executive in a DoJ criminal bid-rigging investigation of food sales to public schools.
  • Multiple successful grand jury representations to obtain immunity for corporate executives and to defend companies in the soft drink bottling, dairy, scrap and metal building industries, with no guilty plea or convictions.
  • Defending a major supermarket chain in an FTC slotting fees investigation and subsequent industry-wide study under Section 6(b) of the FTC Act.
  • Secured immunity for executive in investigation of price-fixing activity in a printing and promotional industry.